Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Collester, J.A.D.
Plaintiff appeals from a summary judgment entered in the Superior Court, Law Division, in favor of defendants, dismissing the action brought by plaintiff. The Law Division's opinion is reported at 78 N.J. Super. 42 (Law Div. 1963).
Plaintiff Samuel Segal, a resident of Philadelphia, on September 1, 1954 leased certain real property located in Pennsauken, New Jersey, to defendant Greater Valley Terminal Corporation (Greater Valley), a New Jersey corporation, for a period of 99 years. The lease provided that said property was to be used and occupied as shipping, receiving and warehousing facilities for petroleum products. The lease was executed in Pennsylvania and rents were to be paid at the lessor's office in Philadelphia.
The lease contained the following covenant:
"Lessee covenants and agrees that he will do none of the following things without the consent in writing of Lessor first had and obtained:
(b) Assign, mortgage or pledge this lease or under-let or sub-lease the demised premises, or any part thereof, or permit any other person, firm or corporation to occupy the demised premises, or any part thereof; * * *"
Plaintiff was given a right of re-entry for violation of said covenant.
On December 30, 1958 the lessee changed its corporate name to Greater Valley Oil & Terminal Corporation.
On July 26, 1960 defendant Paragon Oil Company, Inc. (Paragon), a New York corporation, owned all outstanding shares of each class of stock of Greater Valley and, pursuant to a resolution adopted by Paragon's board of directors on that date, Greater Valley was merged into Paragon. A certificate of ownership effecting the merger was filed with the Department of State of New York on August 1, 1960, and a copy was filed in the office of the Secretary of State of New Jersey on October 20, 1960.
Greater Valley executed no assignment or sublease. Plaintiff contends, however, that the merger worked a violation of the provision quoted above, giving him the right of re-entry.
On cross-motions for summary judgment the court below ruled in ...